Kharkiv Administrative Appeals Court Justice Mykhailo Hutsal received $6,000 on Oct. 18, 2011 after ruling to waive a company’s Hr 1 million tax debt that day.
But the judge had been caught in a security service sting operation targeting bribery. An undercover SBU agent had given a lawyer $8,000 to secure the ruling, and the lawyer in turn pocketed $2,000 after making the payoff.
Hutsal’s crime didn’t earn him a jail term, however, and four years later, on Nov. 27, 2015, a judge acquitted the lawyer, ruling that he had actually been repaying a loan to Hutsal on that day in 2011.
Astoundingly, three months before the verdict, Hutsal – whose income declaration states he and his family own five apartments, a single-family home and cars including a Mercedes Benz A – delivered a seminar on anti-corruption legislation to a group of circuit court judges.
Meanwhile, the lawyer, who inserted the alleged bribe inside a copy of the Supreme Court of Ukraine Bulletin, was found guilty of fraud but not punished because the three-year statute of limitations had expired.
And such absurd verdicts are the rule, not the exception in Ukraine, according to Persha Instantsiya, a project that monitors judicial rulings jointly with the Ukrainian branch of corruption watchdog Transparency International.
Lack of Deterrence
Only 20 percent of 100 officials prosecuted between July and October in 2015 for bribery under article 368 of the criminal code were sentenced to prison or placed under house arrest, according to Persha Instantsiya. The others were either acquitted, amnestied, fined or placed on probation –even though prison is the punishment called for under the law.
About one in four officials were sent to prison for bribery among 15 verdicts the Kyiv Post examined while searching the registry of judicial rulings for November-December.
In one case, a Kyiv judge ruled that a school principal who accepted Hr 4,000 from an alumnus to use a gym had not taken a bribe, as the money was a donation, as prosecutors alleged. The judge wouldn’t admit as evidence an audio recording of the bribe being discussed and said the ink with which the tainted money was marked that was found on the principal’s right hand could’ve been transferred when shaking hands with the aggrieved party – thus, excluding the ink as evidence.
In total, 48 percent of officials were fined, 12 acquitted and 19 percent given probation.
The low verdict-to-incarceration ratio is thus hardly a deterrent to graft, experts said.
“Bribe takers should be put behind bars and fined to prevent future transgressions,” said Mykola Khavroniuk, a leading expert on anti-graft issues with the Kyiv-based Center of Policy and Legal Reform. “Otherwise they will continue taking bribes until it isn’t safe to do so anymore.”
There was a 51 percent conviction rate among 1,330 cases that made it to the courts related to crimes committed by public officials – articles 364-370 – in the first six months of 2015, according to Transparency International Ukraine.
Big bribes are ‘better’
Another finding is that the higher the bribe, the less likely that the offender will face jail time. The average bribe during acquittals was Hr 112,000, whereas those who were sentenced to prison received an average payoff of Hr 40,000.
“This indicates that there’s still corruption and suggests there’s an agreement with judges to get released,” said Maykhailo Zhernakov, a former administrative judge and expert on the judiciary with the Reanimation Package of Reforms, a coalition of nongovernmental groups.
Verdicts in the bribery cases also lacked consistency in applying the law and appeared to be politicized, said Fedir Oryshchuk, a Persha Instanstiya project manager. For example, the head of a regional state land agency had his five-year prison sentence for taking a Hr 667,000 bribe commuted to a probationary period. In contrast, a village council head got five years jail time for taking a Hr 3,000 payoff.
“This tells us that decisions are very arbitrary at the moment; there is no uniformity in court practice or case law for judges… no guidelines,” Zhernakov said.
The Prosecutor General’s Office and the High Specialized Court of Ukraine for Civil and Criminal Cases didn’t respond to Kyiv Post requests for comment.
When asked to comment on the analysis of verdicts, Ihor Benedysiuk, head of the High Council of Justice, which disciplines, hires and fires judges, said the body cannot discipline judges for receiving “improper benefits.” There are about 9,000 judges in Ukraine. Judges can be removed following a conviction and when the High Qualification Commission of Judges informs the High Council of Justice and submits a notice of dismissal, Benedysiuk said in an emailed comment.
Low trust in justice
Corruption within state bodies is the second most important issue for Ukrainians after Russia’s war in eastern Donbas, a comprehensive nationwide survey financed by the Canadian government and conducted by Rating Group Ukraine found in November.
Only 9 percent of Ukrainians trust the country’s judicial system, a poll by the Kyiv-based Democratic Initiatives Foundation found, with 81 percent distrusting the courts and believing judges are receptive to bribes and political pressure.
“People think the biggest problem in the courts is corruption and their dependence on politics and oligarchs,” Zhernakov said.
President Petro Poroshenko’s office has taken notice, at least on paper. Its National Council on Anti-Corruption Policies sent a “protocol resolution” on Jan. 21 to government and parliamentary law enforcement bodies and committees acknowledging the problem.
“The process of forming a modern graft-fighting infrastructure is at the final stage, but it won’t look complete without carrying out judicial reform,” reads the document.
That’s not to say some progress is not being made: there was a 51 percent conviction rate among 1,330 cases that made it to the courts related to crimes committed by public officials – articles 364-370 – in the first six months of 2015, according to Transparency International Ukraine.
But 68 percent of the 2,066 corruption cases that appeared before administrative courts last year yielded fines averaging a mere Hr 581, according to the Prosecutor General’s Office.
Monitoring cases
Meanwhile, Oryshchuk of Persha Instansiya is keeping his eye on fresh corruption cases as they come up. There are plenty of them.
For instance, three tax inspectors were detained in Kyiv on Jan. 16 while allegedly accepting a Hr 3.8 million bribe, according to the prosecutor’s office. The money was for the approval of a Hr 14 million refund on value-added tax. And on Jan. 26, the SBU detained a prosecutor in Dnipropetrovsk while allegedly taking a $1,000 bribe.
Oryshchuk said he’s monitoring these, and other cases.
“After all, we try to track everything that comes our way,” he said, adding that the group plans to publish a study of verdicts related to bribery and public officials in March that will cover cases from March 2014 to February 2016.
